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Water Technology, LLC v. Kokido Development Ltd.

United States District Court, E.D. Missouri, Eastern Division

March 15, 2019

WATER TECHNOLOGY, LLC and WATER TECH. CORP., Plaintiffs/Counterclaim Defendants,
v.
KOKIDO DEVELOPMENT LIMITED and MENARD, INC., Defendants/Counterclaim Plaintiffs.

          ORDER

          AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the parties' cross motions for the construction of certain patent claim terms, pursuant to Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996). For the reasons set forth below, the parties' motions will be granted in part and denied in part.

         BACKGROUND

         This patent case is about swimming pool vacuum cleaners. Plaintiffs are Water Technology, LLC and Water Tech. Corp. (“Water Tech”), maker of the Pool Blaster, Catfish, Leaf Vac, and Aqua Broom pool vacuums. Defendants are Kokido Development Limited, maker of Telsa and Vektro pool vacuums, and retailer Menard, Inc. Water Tech filed a complaint asserting that Kokido's products, sold by Menard, infringe five Water Tech patents. Defendants filed a counterclaim seeking declaratory judgment of non-infringement and invalidity. Water Tech dismissed its infringement claims with respect to two patents. The remaining patents in suit are: (1) U.S. Patent No. 6, 939, 460, titled Portable Electric Pool Cleaner, issued September 6, 2005 (the ‘460); (2) U.S. Patent No. 7, 636, 975, titled Pool Vacuum, issued December 29, 2009 (the ‘975); and (3) U.S. Design Patent No. D556, 396, titled Pool Vacuum, issued November 27, 2007 (the ‘D396). Patents ‘460 and ‘975 are utility patents for hand-held, battery-powered, submersible pool cleaners. The ‘D396 is a design patent for a particular ornamental design for a pool cleaner. Kokido's accused products are also hand-held, battery-powered submersible pool cleaners.

         The parties have submitted claim construction briefs and a joint claim construction chart. On November 28, 2018, the Court held a hearing at which the parties presented arguments and Water Tech offered the expert witness testimony of Mr. David Peterson. As discussed below, Defendants seek construction of seven claim terms of the ‘460 and six terms of the ‘975. Plaintiffs submit that the Court need only construe three terms in the ‘460 and two in the ‘975, leaving the rest to their plain meaning.

         PRINCIPLES OF CLAIM CONSTRUCTION

         Claims Not Requiring Construction

         A district court need not construe every claim term challenged by a party. Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197, 1206-07 (Fed. Cir. 2010). Where the plain and ordinary meaning of the claim term resolves the parties' dispute, a court properly refuses to employ an alternative construction. Id. Conversely, “when the parties present a fundamental dispute regarding the scope of a claim term, it is the court's duty to resolve it.” O2 Micro Int'l Ltd. v. Beyond Innovation Tech. Co., Ltd., 521 F.3d 1351, 1362 (Fed. Cir. 2008).

         “A determination that a claim term ‘needs no construction' or has the ‘plain and ordinary meaning' may be inadequate when a term has more than one ‘ordinary' meaning or when reliance on a term's ‘ordinary' meaning does not resolve the parties' dispute.” Id. at 1361. But, if giving the language of the term its plain, ordinary meaning resolves the parties' dispute, a court need not engage in claim construction merely to accommodate one party's semantic preference for the use of a particular word or phrase. See Id. Similarly, a court need not construe a term where the parties do not present a “fundamental dispute” with respect to the meaning of the term, but instead propose the use of different language to achieve greater clarity or precision. Id. at 1362.

         Principles Guiding the Construction of Claims

         Claim construction is of primary importance in any patent litigation as it “defines the scope of the property right being enforced, and is often the difference between infringement and non-infringement . . . .” Retractable Techs., Inc. v. Becton, Dickinson & Co., 659 F.3d 1369, 1370 (Fed. Cir. 2011). As a matter of law, the court is charged with the responsibility for claim construction. Absolute Software, Inc. v. Stealth Signal, Inc., 659 F.3d 1121, 1129 (Fed. Cir. 2011); Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996).

         The starting point for any claim construction is the language of the claim. Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc). Wherever possible, claim terms are given their plain and ordinary meaning as they would have been understood by one of ordinary skill in the art at the time that the patent issued. Id. at 1312-13. In addition, claims are construed “in the context of the entire patent, including the specification.” Retractable Techs, Inc., 659 F.3d at 1371.

         The specification informs the plain and ordinary meaning of the term. Id.; see also Typhoon Touch Techs., Inc. v. Dell, Inc., 659 F.3d 1376, 1381 (Fed. Cir. 2011); Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998) (“Ultimately, the interpretation to be given a term can only be determined and confirmed with a full understanding of what the inventors actually invented and intended to envelop with the claim.”). However, the specification cannot be used to deviate from or to narrow the plain and ordinary meaning of a claim term “unless the inventor acted as his own lexicographer” and clearly set forth a definition of the disputed claim term or “intentionally disclaimed or disavowed claim scope.” Retractable Techs, Inc., 659 F.3d at 1371; see also Thorner v. Sony Company Entertainment America LLC, 669 F.3d 1362, 1366 (Fed. Cir. 2012) (Courts may not “read limitations from the specification into claims; [and] do not redefine words. Only the patentee can do that.”); Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1327 (Fed. Cir. 2002) (“Claim terms take on their ordinary and accustomed meanings unless the patentee demonstrated an intent to deviate ... by redefining the term” [or by using in the specification] “expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope.”). Thus, the “longstanding difficulty is the contrasting nature of the axioms that (a) a claim must be read in view of the specification and (b) a court may not read a limitation into a claim from the specification.” Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1117 (Fed. Cir. 2004); see also Home Diagnostics, Inc. v. LifeScan, Inc., 381 F.3d 1352, 1358 (Fed. Cir. 2004) (“Absent a clear disavowal or contrary definition in the specification or the prosecution history, the patentee is entitled to the full scope of its claim language.”). “[T]here is a fine line between reading a claim in light of the written description and reading a limitation into the claim from the written description.” Howmedica Osteonics Corp. v. Zimmer, Inc., 822 F.3d 1312, 1321 (Fed. Cir. 2016). (emphasis original)

         “The words of a claim receive the meaning discernible by a person of ordinary skill in the art who has read the entire patent, including the specification, at the time of the invention.” SEB S.A. v. Montgomery Ward & Co., Inc., 594 F.3d 1360, 1368 (Fed. Cir. 2010). The “circumstances in which the written description causes one of skill in the art to reject the plain meaning of a term are quite narrow.” Retractable Techs, Inc., 659 F.3d at 1371. If the inventor uses a “broad claim term that is not supported by his specification, ” a court may not “redefine a claim term to match [its understanding] of the scope of the invention as disclosed in the specification.” Id. An inventor's use of a broad claim term unsupported by the specification may call the validity of the patent into question, but the specification only narrows and never enlarges the meaning of a term. Id.; see also Computer Docking Station Corp. v. Dell, Inc., 519 F.3d 1366, 1373 (Fed. Cir. 2008) (stating that “the words of the claims define the scope of the patented invention”); Phillips, 415 F.3d. at 1316.

         In construing a term, courts first consider sources of intrinsic evidence, such as the claim language, the specification, and, where in evidence, the prosecution history. Id. at 1317. Intrinsic evidence is the most significant source for determining the “legally operative meaning of disputed claim language.” Vitronics Corp., 90 F.3d at 1582.

         If, after consideration of the intrinsic evidence, the meaning of a term remains ambiguous, a court may consider sources of extrinsic evidence, including dictionaries, treatises, and expert and inventor testimony. Phillips, 415 F.3d. at 1317-18. Although extrinsic evidence may prove useful in some cases, it is, for a variety of reasons, generally less persuasive than intrinsic evidence. Id. at 1318.

         PHOSITA QUALIFICATIONS

         As a preliminary matter, the parties disagree about the requisite qualifications of a person having ordinary skill in the art (PHOSITA). Kokido contends that a PHOSITA is someone qualified in the field of vacuums generally and hand-held vacuums in particular. Kokido's expert, Adam Carr, has a bachelor's degree in industrial design, an MBA in design and innovation management, and 20 years' experience in industrial design, including many dry vacuum design patents.

         Water Tech asserts that a PHOSITA must be qualified in the field of water-submersible vacuums, specifically, due to the unique challenges of water-proofing (of electronic elements) and fluid dynamics (for maneuverability). Water Tech's expert, David Peterson, has a bachelor's degree in civil engineering and additional education and training in engineering management and watershape construction. He is a licensed engineer with approximately 20 years' experience in watershaping, including several patents related to pools and pool cleaning devices. Kokido responds that this case involves only the form of the products and not their function, so water expertise is unnecessary.

         In its interrogatory answers, Water Tech described the qualifications of a PHOSITA as follows:

The level of ordinary skill in the art is at least a bachelor's degree in either mechanical or electrical engineering and at least 3-5 years of experience in the research, design and commercialization of products in the field of art, or alternatively less formal education and at least 5-10 years of experience in the research, design and commercialization of products in the field of art.

(ECF No. 88-7, p. 21)

         While there may be aspects especially of the ‘975 patent that address hydrodynamics, none of the claim terms at issue here require such expertise. The Court believes that an engineer or other professional with training or experience in hand-held vacuums would appreciate the similarities and differences between air and water vacuums in a manner sufficient to comprehend the patents. Therefore, with respect to the claim construction issues presented here, the Court finds that a PHOSITA need not possess particularized specialization with respect to water-submersible devices. Mr. Carr's experience with hand-held vacuums suffices. In any case, the Court relies little on either expert's testimony for purposes of claim construction. Water Tech remains free to challenge Mr. Carr's credibility in future proceedings if it becomes relevant.

         CONSTRUCTION OF DISPUTED CLAIMS THE

         ‘460 PATENT

         The ‘460 Patent, Claim 1

         Claim 1 of the ‘460 Patent claims (with disputed terms in bold):

1. A pool cleaning kit comprising:
a hand-held submersible electrically-powered pool cleaner including:
a nozzle;
a toroidal body having:
a carrying handle for carrying, manipulating, and directing the cleaner during use, with the carrying handle being integrally formed from an upper portion of the toroidal body and an opening through the toroidal body;
a rechargeable power source;
an impeller and drive motor powered by the rechargeable power source, and
a filter;
wherein the toroidal body has an intake opening in fluid communication with the nozzle; and
wherein the impeller draws pool water through the nozzle and filter to remove dirt and debris from the pool water; and
a charging device for charging the rechargeable power source.

Col. 5:55-6:8.

         The parties request construction of the following terms:[1]

         1. Nozzle

         The “nozzle” is referenced throughout the patent but is not precisely described or identified by number in the specification. The abstract explains that the pool cleaner has an “intake nozzle for suctioning pool water, ” a handle “for manipulating the nozzle over the surface of a pool, ” and a filter housing “disposed between the nozzle and the body.” Col. 1:38-45. The patent does, however, identify a nozzle attachment (36) similar to vacuum hose attachments, a tubular member (44) to which such attachments fit, and a nozzle pivot interface (42), which allows the nozzle attachments to angulate. The tubular member is identified as 44 in Figure 3, illustrating the “nozzle end of the pool cleaner, ” and as 44 and 58 in Figure 4, illustrating a nozzle attachment.

         (Image Omitted)

         Water Tech asserts that “nozzle” should be construed as “a piece used to direct a flow or fluid.” Kokido proposes “a short tube protruding from the pool cleaner used to direct a flow of fluid.” Water Tech objects to Kokido's construction insofar as the patent does not specify length, require protrusion, or reference a tube. The Court agrees that the patent does not invite inferences of length or protrusion. While these limitations appear to be part of the preferred embodiment and are illustrated by the figures, they are not suggested by the claim language itself or the description. As such, there is no basis for importing these limitations into this term. See Arlington Indus., Inc. v. Bridgeport Fittings, Inc., 345 F.3d 1318, 1327 (Fed. Cir. 2003) (declining to restrict the meaning of a claim term based on the description).

         However, though the patent does not require any particular shape of nozzle attachment, the figures depict a nozzle end that is tubular and, throughout the specification, both the nozzle end and the nozzle attachments include a tubular member. For example:

The nozzle pivot interface 42 includes a tubular member 44 to which a particular selected nozzle attachment 36 is removably secured ... . In one embodiment, the nozzle pivot interface 42 has a predetermined width for attachment to standard, commercially available nozzle attachments such as components with widths of about one inch (about 2.5 cm). Col. 3:55-62.

         Indeed, nothing but a tubular nozzle is described or illustrated in either the description or any of the embodiments discussed in the patent. The Court therefore finds that the nozzle is tubular. See Howmedica, 822 F.3d at 1321 (noting that “every description and every figure in the patent that discusses the issue” compelled the same construction). Though the Court need not rely on the extrinsic evidence to reach this conclusion, the Court also notes that both parties' dictionary definitions refer to a tube.[2]Thus, the Court concludes that “nozzle” shall be defined as “a tube directing a flow of fluid.” .

         2. Body

         Water Tech asserts that “body” needs no construction and should be given its plain and ordinary meaning. Kokido proposes: “the main outer casing of the pool cleaner.

         The intrinsic evidence belies Kokido's narrow interpretation. The specification reflects that “body” (16) refers to the rear section of the device as a whole.

Abstract: The body has a filter, and impeller and motor, rechargeable batteries, and a handle for carrying the body and for maneuvering the nozzle along the surface being cleaned.
Summary: The body houses a filter, an impeller attached to an electric motor, and includes a handle for carrying the body.” A filter housing disposed between the nozzle and the body accumulates the filtered debris.” Col. 1:39-41, 1:44-46.
The body 16 includes hollow sections 18 … which fill with water during immersion so the pool clearner 10 is not buoyant after fall [sic] immersion. Col. 2:56-59.
A pole attachment member 20 extends from the body 16 allowing the extended pole 12 to be securely but removably attached to the pool cleaner 10 … . Col. 2:63-65.

         Perhaps most compelling, Figures 8 and 9 represent "cross-sectional view[s] of the body of the pool cleaner" and illustrate the entire rear section of the device, including its internal components. Figure 9 is most representative:

         (Image Omitted)

         Thus Kokido's construction of "body" as meaning only the outer casing simply does not comport with the intrinsic evidence. "The words of a claim receive the meaning discernible by a person of ordinary skill in the art who has read the entire patent, including the specification, at the time of the invention." SEB S.A., 594 F.3d at 1368. The Court finds that, after reading the entire patent, a PHOSITA would understand "body" without the need for further construction. The Court rejects Kokido's narrow definition and declines to construe "body" away from its plain and ordinary meaning.

         3. Toroidal body

         The parties agree that a toroid is a three-dimensional shape formed by rotating a two-dimensional shape about an axis. For example, a two-dimensional letter "O" (a circle) rotated about an axis forms a three-dimensional donut, i.e., a toroid. A two-dimensional rectangle rotated about its axis forms a cylinder. Kokido asserts that “toroidal” is simply the adjective form of toroid and thus should be construed to mean a complete and symmetrical toroid. Kokido therefore proposes the construction: “a body that is shaped like a toroid and 360° symmetrical.” Water Tech asserts that “toroidal” is broader and does not imply a perfect toroid; in fact, the patent figures preclude such a construction. Water Tech proposes: “a body having a shape generally related to a toroid.

         The intrinsic evidence suggests a broad construction. Terms in a patent document are construed with the meaning with which they are presented in the patent document. Phillips, 415 F.3d at 1316. “The context in which a term is used in the asserted claim can be highly instructive.” Id. at 1314. Here, the context of Claim 1 instructs that an opening in ...


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